Habitat India vs M/S G R Gupta Brothers Pvt Ltd
2018 Latest Caselaw 474 Del

$~6
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                         Date of Decision: 18th January, 2018
+                                   RFA 583/2016
       HABITAT INDIA                                       ..... Appellant
                           Through:      Mrs. Biji Rajesh, Advocate for Mr.
                                         Gaurang       Kanth,        Advocate.
                                         (M:9717577733)
                           versus

       M/S G R GUPTA BROTHERS PVT LTD        ..... Respondent

Through: Mr. Vikas Sharma, Advocate.

(M:9810566116) CORAM:

JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh. J. (Oral)

1. The present appeal impugns judgment/order dated 19th January, 2016. By the impugned judgment, the Trial court decreed the suit filed by the Respondent/Plaintiff (hereinafter, 'Plaintiff') in its favour for a sum of Rs.8,17,771/- along with the pendent lite and future interest @ 18% per annum from date of filing till realisation.

2. The Appellant/Defendant (hereinafter,'Defendant') challenges the impugned order on the following grounds:

(a) the evidence of the Defendant has been completely ignored on the ground that board resolution in favour of DW-1, Mr. Anil Mahindra was not produced.

(b) the certificate issued by the project manager of M/s. Cushman & Wakefield (I) Pvt. Ltd. was not proved in accordance with law

(c) the Plaintiff had not completed the entire work and actual measurement of actual work completed could not be taken as the premises had been sealed by the MCD,

(d) the interest awarded is on the higher side i.e. @18% per annum.

3. The brief background of the case is that the Plaintiff had entered into a construction contract dated 1st November, 2005 with the Defendant. The Defendant was the owner of the property bearing no. 3rd Floor, Tower-2, C- 3, Qutub Institutional Area, New Delhi. The Defendant had proposed to construct the new facility for Amway India Enterprises who was to be the tenant in the said premises. The work was entrusted to the Plaintiff. Completion date for the work was 20th December, 2005. Under the provisions of the contract the Plaintiff was to execute the civil and interior work including plumbing, fire fighting works, etc. in the premises. The project manager for the contract was M/s. Cushman & Wakefield (I) Pvt. Ltd. as per clause 1.27. Both the parties had appointed the project manager who would supervise the work done.

4. The Plaintiff led evidence and also produced Ex.PW-1/6, which is a certificate dated 30th March, 2016 issued by Cushman & Wakefield, which was accepted by the project manager. This certificate showed the amount of work done as per BOQ as also the deductions etc. On the basis of the said work done by it, the Plaintiff filed the suit being CS No.412/14/2007 seeking recovery of Rs.8,22,763.75 along with interest. The Plaintiff led the evidence of Shri Gulab Rai Gupta, PW-1 who exhibited all the relevant documents including the final bill. The Plaintiff's witness also exhibited all the letters written by it to the Defendant seeking the balance payment.

5. A perusal of the record shows that the Defendant led the evidence of only one witness namely Shri Anil Mohindra. The Defendant is a society under the Societies Registration Act, 1860. Shri Anil Mohindra, DW-1 claimed to be the authorized representative; however, no board resolution was filed by him. He also admitted that he has not signed the written statement in this case. Even if the evidence of the authorized representative is read, the said affidavit makes the following averments:

(i) The work was not completed by the Plaintiff. DW-1 asserts that M/s. Cushman & Wakefield (I) Pvt. Ltd. was the project manager who was responsible for the day to day supervision, quality control, progress monitoring, coordination and direction but DW-1 also states that the project manager was not the final authority. The Defendant relies upon clause 6.3 of the contract to submit that the owner's representative is the final authority to decide all matters effecting the cost and timings of completion of contract.

(ii) DW-1 further submits that the Plaintiff had left work incomplete. However, since the premises was sealed in 2006, no measurement could be placed on record.

(iii) DW-1 further submits that no completion certificate was issued to the Plaintiff, therefore, the project could not have been taken to be completed. In paras 13 & 14 of the affidavit, DW-1 admits that some of letters written to the Defendant were not replied to and some were not received at all.

6. A perusal of the record reveals that the construction contract is an admitted document between the parties, Ex.PW-1/2. The fact that M/s.

Cushman & Wakefield (I) Pvt. Ltd. is the project manager is also admitted. Admittedly, the Appellant did not place on record any evidence to show as to the extent of incomplete work. It is relevant to point out that DW-1's evidence asserted that the de-sealing of the building took place on 26th June, 2011, however in the affidavit filed on 16th December, 2013 i.e. 2 years later, no measurements or inspection report were filed to support the contention that the work was incomplete.

7. In the cross examination of the authorized representative of the Defendant, the witness DW-1 categorically admits the letter issued by M/s. Cushman & Wakefield (I) Pvt. Ltd. The relevant portion of the cross examination is set out herein below:

"There is an authorization regarding my being the authorized signatory but the same is not filed by me. It is true that the accompanying affidavit with the written statement has not been signed by me but by Mr. Anil Sareen. (Vol. We have been in constant touch with project consultant M/s Cushman &Wakefield India Pvt. Ltd. to complete the balance work). It is correct that we had not written any letter to the aforesaid project consultant as well as to the plaintiff at any point of time in afore regard.

Q Whether you have filed any reply to the letter dt. 15.02.2007 and another in 09.03.2007 alongwth AD card?

Ans. No, we have not received any letters. So, there was no question of any reply.

Ex. PWl/6 dt. 30.03.2006, is issued by M/s Cushman & Wakefield India Pvt. Ltd. It is true that the condition of the agreement were applicable to both the parties to the present suit.

It is wrong to suggest that I am deposing falsely."

8. Under such circumstances, when the Defendant fails to lead any evidence as to the nature of incomplete work, it cannot be ignored that the project manager, which was a common party to both the sides, has given a certificate of the extent of work completed. Certificate (Ex.PW-1/6) issued has to, therefore, be read in evidence and no evidence is forthcoming to rebut the same. The Trial court has rightly considered the said exhibit as being the document for determining the amounts due and payable to the Plaintiff.

9. The trial court is therefore right in decreeing the suit in the sum of Rs.8,17,771/-. However, the Trial court is not right in simply holding that since there was no authorisation, the Defendant's evidence could not be read in the suit. There is no doubt that the Defendant ought to have produced the authorisation on its behalf. However if suits of this nature are being adjudicated, the same cannot be dismissed on a technical ground and the entire evidence cannot be shut off. This Court has perused the evidence filed by the authorised representative and finds that the evidence in fact supports the case of the Plaintiff. The suit has been rightly decreed and the Trial court judgment is accordingly upheld. Thus, the first 3 grounds raised by the Defendant are not tenable.

10. The interest @ 18% per annum, which has been awarded to the Plaintiff, is on the higher side. In view thereof, the interest amount is modified @ 6% per annum from the date of filing of the suit. The Appellant/Defendant has deposited the entire decretal amount with interest calculated @ 9% per annum. The same is lying in FDR. The entire decretal

amount calculated at 6% p.a. be released to the Plaintiff.

11. The remaining sum lying with the Registrar General of this Court shall be released to the Defendant. Parties to file the computation before the Registrar General.

12. List on 12th February, 2018 before the Registrar General for accepting the computation on behalf of both the parties and directing the release of the sums as due and payable to both Plaintiff as well as Defendant. Decree sheet is modified accordingly.

13. The Appeal is disposed of in the above terms.

PRATHIBA M. SINGH Judge JANUARY 18, 2018/dk